City Council Special Meeting

Star City Council Special Meeting Minutes August 15, 2018 A special meeting of the Star City Council was held on August 15, 2018 at 7:00 pm at LifeSpring Church, 174 N. Star Road, Star, Idaho. Mayor Chad Bell called the meeting to order at 7:00 pm and all stood for the Pledge of Allegiance. Roll Call: Councilmen David Hershey, Michael Keyes, Trevor Chadwick, and Kevin Nielsen were all present. Approval of Agenda: Chadwick moved to approve the agenda, Keyes seconded the motion. All ayes: motion carried. PUBLIC HEARING: Reconsideration for Willowbrook Development - Mayor Bell stated this is a public hearing for the reconsideration of the Willowbrook Development. There will first be a presentation of what the reconsideration is about, Council will ask questions, take public testimony and Mayor asked they keep to three minutes, then staff comments followed by rebuttal and move to deliberation by the Council. The Mayor asked the Council for any ex parte contact or conflicts of interest. Keyes stated he had had a brief conversation with Gary Smith, and when Smith brought this topic up Keyes informed him he could not discuss, and he is making it known they did not discuss this item. Mayor Bell declared the public hearing open and turned the meeting over to staff consisting of the planner and special Counsel. Cherese McLain, with MSBT Law, Charter, located at 7699 W. Riverside Drive, Boise, Idaho introduced paralegal Jeffrey Stroder, who is new to their firm and is with her as staff. She stated Mark Butler and herself had looked over the request for reconsideration and had compiled a summary and provided a set of findings for the comprehensive plan, rezone and development agreement. She asked the Council if they had a chance to review and noted the proposed documents were available on online and made available to the requesting party as well. McLain explained they will review any claims being made and then present comments from staff. She noted Nathan Mitchell, representing the applicant, is entitled to provide input at that time if he desires. Afterwards she would suggest that the first person to come up be the legal representative of the requesting parties and then continue on with public testimony. McLain stated the first thing they identified in JoAnn Butler's letter was the comprehensive plan is invalid because it was missing four key elements required under Idaho Code Section 67-6508. Those elements have since been identified and the City approved the comprehensive plan amendment on July 24, 2018 with the written findings approved August 7, 2018. The second matter was that the Council did not comply with its January 16, 2018 motion. Frankly the City is entitled to interpret its motion or desired actions anyway it wants, so it is not really relevant to the claim for reconsideration. The third item was that the applicant property owners were unknown, there were no affidavits of legal interest as required by the City and that the legal descriptions were not provided. Since then the developer has gone above and beyond and has provided a metes and bounds description as well as an 1 affidavit of ownership and/or control. Of the thirty-two parcels, the applicant does own and/or control the ownership of those parcels. The fourth item identified is kind of answered by the previous one, it was that Richard Phillips is not the president of any of the owner entities. We pulled the Secretary of State records; in fact he does have control over these properties. The fifth is the application exhibits include properties not owned by any entity in the Willowbrook Development. Mark Butler addressed this, stating he did a more in-depth analysis of paperwork in the file. There was a concern that the application exhibits included property not owned by any entity related to Willowbrook Development. What we found and addressed in your findings was there was a deed from 2005 that was in Mr. Phillip's stepdaughter's name in a company called City Development. Actually that was in the file by error and we have replaced that deed with the correct deed which is in Dick Phillips name in a company called Three Islands; and have replaced that deed. He assumed the claim pertained to this deed as all the other deeds are correct. The surveyor has gone over all this information and has verified the deeds are correct. The person requesting reconsideration may be referring to the bubble plan which is the concept plan. The concept plan is a concept only and there may be a little line went somewhere else because it is a concept plan. Butler stated they now have in the file a fifty-page legal description that is very specific. Item number six was the deed submitted does not meet the City's requirement and includes deeds that are totally irrelevant. Mr. Butler stated he had just addressed that and he has not found any other issues. Item seven was that no site plan was submitted, and Mrs. Butler stated a site plan was submitted and he had just referred to it as a bubble plan or concept plan. In addition to that, they now have a legal description that is very specific. Item eight noted that it was impossible to discern location of parcels and unclear where properties to be annexed are located. Again, they have outlined those issues; have got the deed issues corrected, there was one parcel number that by error ended with a six and was supposed to be a zero. He has identified this in the findings. They did go through all the parcel numbers and verified they are correct. McLain stated the ninth thing they found was that the application was deficient, incomplete and/or inaccurate. She stated she believed the previous discussions they have had does clarify any mistakes they have identified. As to whether the application was deficient, and as the draft findings provide, it is within the City's authority and especially the city planner under city code to determine and deem if the application is complete. The planner did do that and they recommend the City uphold that it was complete, but for very minor issues such as that one deed which has been corrected. Mr. Butler stated item number ten stated none of the agencies requested conditions of approval were included with the City's decision, the number of the political subdivisions commenting on the application have not been involved in the City's planning process, and the type of level of public services has not been identified. He stated they have in fact reviewed those agency letters, and the Council in fact ultimately approved the development agreement that refers to issues raised by those agencies. He noted they may not have agreed to specific conditions they proposed, but that is under their jurisdiction and the development agreement is very thorough in regard to addressing those jurisdictional issues. He stated they have outlined that in the findings and tried to make that clearer. 2 The next issue was neither commercial use nor gravel mining operation, even with a conditional use permit, is allowed in R-2, and yet both are being permitted in the development agreement. This is a stretch of error. The development agreement is very specific and states if commercial goes in there you have to follow the PUD process. The PUD process is in your Unified Development Code and it allows a mix of use. So that's all a development agreement does, it doesn't permit commercial uses, it merely identifies your PUD processes which is already in code. With regard to gravel extraction, Mr. Butler stated he did make a little more modification because this is not a mining operation that is being referred to in the development agreement. This is if somebody wanted to dig ponds on their property, so he made modification on the development agreement to Section 2.5 and added language. It says Gravel extraction and he added "on site", to be clear it is on site, not a mining operation as defined by code. Section 2.5 now states gravel may be extracted on the property to create ponds or other similar features as approved with a concept plan, without issuance of a conditional use permit, as long as the gravel is not hauled off-site and is not crushed, because a conditional use permit would not be required for such activity. Butler added "because a Conditional .... activity" for clarity. Mr. Butler stated that while on the development agreement, the only other change he made is the amount of acreage. When Roy Johnson, the surveyor, initially submitted his stamped letter saying what the properties were, he used the sizes given by the assessor's records. As many know in the trades the assessor's records can be a little bit off. So when he did a specific legal description, he found out the total was slightly higher, so it is about four acres more than we had originally known and that has been clarified in the development agreement. That is the only other change made to the development agreement. McLain stated the next item was the Council must complete the planning process and Star has ignored its planning duties and responsibilities which is a serious and specific deficiency. The response to that would be yes we don't disagree with the request for reconsideration, which is why it was suggested it be granted to be heard. Mr. Butler did identify the missing elements that were not in the 2008 Comprehensive Plan and hence that is why the City immediately underwent a notice process, sought public input and amended that Comprehensive Plan in order to come into compliance. The City did not ignore its planning duties, and if they did in the beginning they certainly cured it later on and prior to this hearing tonight. The next item McLain noted was the Comprehensive Plan does not exist for the area proposed for annexation. The application was an amendment to the Comprehensive Plan and as part of that amendment it stated in your findings when an annexation comes in all of the comprehension plans conditions are imposed upon it. So it's not really a problem. The next item was no documentation or factual studies were included that would substantiate the Councils conclusions that indicate how the proposed amendment is consistent with the other elements of the Comprehensive Plan, bolster the Councils conclusions that the map amendment provides an improved guide for future growth and development, explain why not extending the City's boundary at this time would severely compromise future City expansion, and show why expansion is a long and critically needed avenue for other directions of expansions are extremely limited. McLain stated Mr. Butler had already addressed some of this. These are taken care of with both the conditions of approval and the development agreement. 3 McLain noted the next item was the proposed amendment was not consistent with the goals, objectives and policies of the existing comprehensive plan. She stated this was an interesting statement, one that is a bold assertion with no supporting reasons why it's not consistent with the comprehensive plan; but an amendment itself is an intended deviation. That is the point of an amendment; it is different from the current comprehensive plan. She noted the petition failed to specifically identify a comp plan section as to why it was inconsistent, so it doesn't really have any reasoning behind it. McLain stated the next item's answer is fairly the same to the previous one, the reason stated "because the expansion and proposed land use designation once becoming part of the plan is automatically governed by all the provisions of the plan" is completely contrary to Idaho land use law. There are no supporting issue statements, nothing for us to respond to. We disagree, the comp plan will require upon annexation that the property is subject to all the comprehensive plan elements. McLain stated the last thing they identified is the statement that this territory includes areas served by the Middleton School District, while the existing comprehensive plan addresses school service solely from West Ada County School District; it underscores the need to strictly adhere to the statutory requirements to consider previous and existing conditions as well as future situations and update all elements of the comprehensive plan. McLain pointed out the Middleton School District was included in the updated comprehensive plan and furthermore a lot of these issues you can see were issues they stated and were addressed during the Comprehensive Plan Update Amendment. McLain asked if the Council had had a chance to review Mr. Butler's staff memo discussing what we are doing here tonight. They have a request for reconsideration under the Land Use Planning Act which states you must cite deficiencies in your written records and they have provided their alleged specific deficiencies. Because they had missing elements in the comprehensive plan and the City has since gone back and corrected that, tonight is kind of a two-animal hearing. It's one to allow the petitioners for the reconsideration to provide a presentation based on the issues they just set forth. It is also for you to apply the new updated comprehensive plan to the application, so we are in compliance with LUPA. We are doing a redo on the comprehensive plan with the new amendment and allowing the reconsideration parties to have time to speak. She noted in the public testimony portion, any information is invited because it is a public hearing, however, in this instance the City has already provided a public hearing and opportunity to be heard before hand on a myriad of issues. They encouraged the focus to be on any new changes or information on the new comprehensive plan or on anything that was stated on their request for reconsideration. McLain asked if Council had any questions for her, to which it was stated they had none. Mr. Butler noted they did received two letters, one from the Star Sewer and Water District and the other from the Fire Protection District supporting this application; as well as three letters of non-support from neighbors not supporting this application. He noted he had given copies to JoAnn Butler. Public Input – Mayor Bell explained that before they took comments from the public from those who had signed up to speak, they would be allowing JoAnn Butler ten to fifteen minutes as she represents the Hillsdale HOA in making the request for reconsideration. The Mayor disclosed that Mrs. Butler has presented them with forty-two names that have hired her to represent them. The Mayor asked if she is speaking for an individual who has signed up to give testimony, if they would state so and whether they wished to present additional comments or just agreed with Mrs. Butler’s comments. 4 JoAnn Butler, 251 E. Front Street, Boise, Idaho thanked the Council for the additional time but felt she would not need it. She stated she felt they would all agree they have had way too many hours together. The problems they have identified with the application and the approach taken with the comprehensive plan are easily solved. She stated this is not about her or her clients; it is about what it takes to make a complete application and what it takes to ensure a valid comprehensive plan crafted according to code. The rules of the road to get there are not made up by me or you or an applicant, they are set out by code and case law. Follow these rules and you have a process that will be trusted and your decisions will be infallible. You would be protected, my clients would be protected, applicants would be protected and the general public would be protected. The proposed findings indicate that you believe you have fixed the problems, but they do not follow the code and case law and so we have to disagree. She stated she would specifically layout that the comprehensive plan was not only invalid because it was missing particular elements and you identified those elements and added them; but they are not drafted as provided by case law and as explained by legislative history, all of which we have provided to Council. The legal descriptions you have received since you made your final decision in connection with this application are not on the whole stamped by the surveyor, leading one to believe the surveyor doesn't believe they are complete. The site plans you have included include property not owned by any entity that is related to the applicant and we have provided that information to you tonight. All owners of the property have not been identified by the applicant or provided an affidavit of legal interest. The final decision was made in early June and the City, the staff and the City as a whole has supplemented an application made by a private party and post your decision on that application. You have supplemented that application and have applied your comprehensive plan, which again we find invalid, to apply these retroactively to an application. The simple solution, which we think could have been taken a long time ago, was to have the applicant stop, provide a complete application and allow you to conduct your comprehensive planning process in a manner that is provided by code as we have provided in the record as a whole. With that we have to disagree with the proposed findings that you have provided. We know we disagree and hope you have the opportunity to again review the record as a whole and possibly take the time to have the applicant put a complete application together from the start and put the comprehensive plan together as provided by code. Mayor Bell asked if there were any questions for Mrs. Butler. Councilman Nielsen asked Mrs. Butler about her comment that our comp plan was invalid as it wasn't drafted according to case law and legislative history. He asked her to explain if she could the requirement for a city to go back and look into case law and legislative history; where is the requirement to draft a plan according to those things. Mrs. Butler stated it is laid out in state code and state code has been interpreted by our courts. When they have directed cities or counties in the past when they have done something wrong it has gone to the courts and maybe have gotten to the supreme court and the direction from the supreme court is interpretation and guidance to the cities or counties and their staff as to how they go about drafting comprehensive plans and how they view or redo applications, how they set their standards, how they identify or apply those standards to draft findings and conclusions. That's why those are the rules of the road, the codes and the case laws are the interpretation of the codes. Nielsen asked if the local planning act doesn't refer to case laws or legislative history, but it does give us instruction for drafting a comprehensive plan. So are you suggesting that when we attempt to create a comprehensive plan or amend it then we are suppose to - what do you suggest we do. He asked her to describe what case law is. Mrs. Butler explained you hire lawyers to help you understand how the court has since 1975 interpreted LUPA and provided guidance to the cities. She stated she does not expect a certain City Councilman will know where to go to find case law to find that interpretation. That is why you hire counsel and why she is standing here. She's not here to put people's faith in it. It is the idea that as a citizen you come before the Council and try to say here is my thought and how you might want to look 5 at this. It's done with all good intentions and not to object just for the sake of objecting. So your counsel and the counsel that is representing these forty-two people are here to say let's try to do it right so we don't have a fight on our hands. Nielsen asked Mrs. Butler to explain the difference in creating a comprehensive plan and updating the map of a comprehensive plan. Mrs. Butler stated a comprehensive plan is required to have certain elements and those certain elements are required to be analyzed by a city in certain ways in order to have a factual basis and factual understanding for those elements. So there's a good planning guidance for any applicant as they come forward and try to craft their application to make sure their application complies with your comprehensive plan, because that is one of the findings you have to make. All of those elements have to be addressed before any application would be considered valid. Nielsen noted that as he read through the packet it speaks of instances where in the past Mrs. Butler has represented other developers or other applicants and argued for or on behalf of the applicant regarding the Comprehensive Plan and was curious since she had argued on both sides and wondered what had changed. Mrs. Butler stated she could think of two instances when she was involved in applications before the City. One of those was in a commercial area near Pinewood Lakes which was already zoned. When you have zoning the assumption is that when Pinewood Lakes was approved you made a finding that Pinewood Lakes was in compliance with your comprehensive plan. And because you found it to be in compliance with your comprehensive plan, you gave it zoning and no appeal was made, then that was put to rest. So the commercial area I addressed was already zoned and the assumption was you had already made your decision about the comprehensive plan on that commercial area. So when I came to you at that time I was dealing with a zoned piece of property. Another piece of property I know, but I didn't bring the application, but Roylance and Associates brought some property that was previously owned by Corinthian Development. When Roylance brought that through and I was legal counsel on the side dealing with restrictive covenants and some other things, my recollection is that Dave Roylance and his firm also addressed comprehensive planning issues, but I can't recall exactly what they were but they did address comprehensive planning issues. Mrs. Butler stated comprehensive planning is deeply important to her and know it's important to the Council and it's important to our citizenry. Her goal tonight is to say they would hope the Council would take the time to do that correctly because that will mean the planning process is in place. She gave the example in regard to the transportation element of the comprehensive plan; you have that element now in your comprehensive plan today. You are looking to expand your comprehensive plan over a much greater area throughout the City and especially in this northern area. We provided you with legislative history. Ada County Highway District, Canyon Highway District #4, ITD and I believe COMPASS also all said wait, stop, work with us to do an overall transportation study so we understand how the public will be served with transportation infrastructure and they can identify whether or not an R-2 zone across this whole property really makes sense. Legislative history for the local land use planning act states you need to go through that process; you have to do that to make a valid portion of your comprehensive plan. That's what we are trying to say, wait, stop, do what your other jurisdictions are asking you to do so you have an idea what the offsite improvements are that you need. Consider what road improvements you may need, and you may need to make this a condition. Your sister agencies will thank you if you do a transportation study because they will know R-2 zoning is appropriate. Your applicant may be saying they need to know what their entitlement is before we put any money down and do this study, in her opinion this is not proper planning. That is why the local Land Use Planning Act and legislative history is there, because that was not happening in cities. So, the local Land Use Planning Act was amended not too long ago, and the legislative history associated with that, to give cities further guidance to wait, stop, this is how you should be coming together. 6 Nielsen asked if this is a matter of the size of the application; to which Mrs. Butler stated no. Nielsen noted this isn’t anything that’s been requested with any applications since he’s been on the City Council. All agencies are always asked to comment. Mrs. Butler is talking about a much larger private effort and from Nielsen’s perspective that would be initiated when you’re going to draft a comprehensive plan or update a comprehensive plan, not when you have a land use application or a map amendment. Mrs. Butler stated she has rarely seen a client that would not take it upon themselves to provide transportation information to the cities and you don’t have that today. Very often you will have a small application and your transportation agency will come and say the roads leading to here have the capacity to absorb the transportation traffic that would be generated. Nielsen asked if state law required that we follow the recommendations of the sister agencies and does state law and legislative history say we have to reach out to those agencies for comment. You say the size of the application doesn’t matter, yet those agencies on smaller applications say that the size of the road is good, but when we reach out on a larger application and they are not quite as agreeable is there a state law that says we have to react differently to both situations. Mrs. Butler stated she believed state law will tell you when you are doing a comp plan amendment and you don’t have the factual basis on the transportation element, then I think state law would say no you need to find the factual basis and that is why you do transportation studies. Nielsen asked about Mrs. Butler’s comment that the site plan includes property not owned by the applicant and asked if she could identify as he could not find anything on what they have. Mrs. Butler stated she has provided information to staff identifying each parcel by owner, so they can identify whether or not you have affidavits of legal interest. You have also included in your site plan property owned by Ray Irving on the most southerly boundary and we have pointed this out a long time ago. Mayor Bell asked that all who are represented by Mrs. Butler, we’re not saying you can’t speak, but if she represents you and has said what you want to say then we have heard it. If you have something different than what she has said, then please speak. The Mayor stated when he gets to their name they will have three minutes and they would like comments to be directed to this reconsideration topic. He noted they have already heard testimony before at other public hearings about all the issues of this application, but they certainly welcome them to tell them what they feel. Kim Sullivan, 5780 N. High Hill, Star, Idaho stated it says your mistakes don’t define your character, it’s what you do after the mistake that makes all the difference. She stated we are here for reconsideration because the first time you voted for the annexation there were missing components required by Idaho Code. Together tonight as a community, you have been given the opportunity to rewrite history and do it right this time. New items have been added to the comp plan, but it is still a skeleton of what we need in order to move forward. She asked if they could stop looking at the bare minimum of what’s required and set their sights a little higher. They encourage their children to reach for the stars while you seem to look to scrape the bottom of the barrel while planning for the community. She stated two weeks ago she attended a workshop with Mr. Butler and left that meeting with two things. One, she believes Mr. Butler wants to work with the community to build a strong comp plan and secondly that there is a lot of work ahead of them. Mr. Butler said this is a process that is going to take a while, but she hopes people will stick with it. Tonight, she believes they all have one thing in common, they all love where they live and are willing to work together. She asked they please give time to discuss traffic on our roadways, focus on downtown and what defines it, the river area, possibly have a community center. Right now there doesn’t seem to be any town pride. She asked they start with the basics, it’s time to review what they have, time to organize and focus on fixing the problems, time to learn from our past and plan for 7 the future. She asked them to fix the brokenness, so they can work together; it’s about doing what’s right for the community. We are only as strong as we are united, not divided. The Mayor had to ask the audience to remember this is a legal hearing and asked for them to refrain from applause and cheering. Tom Johnson stated Mrs. Butler spoke adequately for him and he had nothing to add. Matt Flemming, 12076 W. Deep Canyon Drive, Star, Idaho referred to the 2011 Downtown Revitalization Plan noting it states “The vision of this plan is to establish downtown Star as a unique, vibrant and accessible retail center that serves area residents and entices visitors to stop. Public input shaped the plan through business and community questionnaires, surveys mailed to city water and sewer users, summary newsletters, and by a series of five public meetings. This plan is intended to serve as a long- range working document for guiding local downtown revitalization efforts that mutually benefit the City of Star, property owners, business operators, residents and visitors.” He noted the document is seven years old and shows the City Council and those hired by the City Council worked with citizens to mutually define what was in the best interest of Star. There was an economic plan that was an agreed upon effort. He stated he is concerned with massive growth and that it is alarming that we are not trying to match and work with this plan developed in 2011. Mayor Bell next called Richard Moore and noted they had a letter from him and asked if he planned to read it or had additional comments. Richard Moore, 2535 Desert Springs Circle, Star, Idaho explained how he came to be here in 2015 and loves Star. The proper way to plan a community is to create a vision with extensive community input; and with that vision you create a plan, a comprehensive plan to carry out that vision. A plan defines what we want the community to look like and how we will achieve that vision. Development needs to be consistent with that plan. We appear to be doing the process in reverse by approving then doing the comp plan. Moore asked they go through the proper process and asked they reconsider. He stated he would be willing to volunteer to raise funds to improve downtown and was sure there were others. Sharon VanDussen, 17615 W. Hidden Lake Street, Star, Idaho stated she just found out about the hearing yesterday, so she knew very little. She asked what their plans were for infrastructure, schools, the fire department and that sort of things. She asked whether they have worked with the builder to donate land or whatever for this sort of thing. Bob Lenigan, 10605 W. Deep Canyon Drive, Star, Idaho asked what a bubble plan was. He stated he had been in zoning for many years and had never heard of a bubble plan. Lenigan stated they have been dealing with this for five years – Mayor Bell explained it had only been eighteen months. Lenigan noted they don’t have a written plan for building. He has been in business and you can’t get projects sold if you don’t have it in writing. The comp plan is supposed to give builders direction. Craige Naylor, 5456 N. High Country Way, Star, Idaho stated Mrs. Butler spoke for him. Dave Hansen, 964 N. Cygnus Way, Star, Idaho stated he has lived in the valley twenty-six years and growth is happening and always will. He pointed out everyone sitting here’s house was originally farm land. The good news about this application is that it has prompted revisions to the plan. The Council recognizes it needs more work. He stated he is a constituent of Star and we need to work better together with those who are not residents. 8 Pat McDowell, 4865 N. High Prairie, Star, Idaho noted they are looking at doubling the City’s population in the next few years and he felt it would degrade their quality of life, increase traffic, and stated the highway districts have no money to improve roads. He questioned if the developer was going to put the roads in or contribute money. He is concerned there will be more people driving on the same unimproved roads. He noted to be a good neighbor you have to give and take. He shared as an example he had put up a fence around his place and put solar lights on the fence. When a neighbor informed him he didn’t like the lights he disabled those lights so the neighbor could have his night sky. He asked that we be good neighbors and think about others. Collen Moore, 25383 Desert Springs Circle, Star, Idaho stated Councilman Nielsen raised a question she felt was worthy of an answer. Star has been described as a niche community and Nielsen asked exactly what did that mean. She has thought about it and stated this is a magical area with hawks flying and an amazing sky. She explained people wave to each other when you pass them. She noted there has been problems with people turning onto Highway 16. Star is a mixture of rural and people who take pride in humanity, education, and the arts. With those kinds of people there will be others who will want to join us because there is room to breathe and to grow. It is essential for planning to be in place and she stated she appreciates their attention to that. Michael Traficante, 301 S. Selwood, Star, Idaho, noted the Council had originally sent the development agreement application back to the applicant to beef it up. This initial planning shows you as a Council wanting to take greater planning and execution in applications. You wanted a comp plan that was beefed up to support applications such as this one. Prior to reconsideration you wanted a compliant and legal legality in your Comp Plan and you had it done. It is valid, contrary to popular belief. The Council has heard a lot about traffic impact studies, school crowding and roads in previous hearings. Yet the reconsideration lists none of that. He stated he disagreed with Mrs. Butler’s assessment of different agency's input; that is simply over interpretation of the letters received by the City for the development agreement from other entities. When anyone is ready to build they will do a complete impact study. It's your requirement and their burden, not the cities and not the taxpayers. Traficante recommended approval with the conditions the Council sees fit. Tammy Boeck, 5908 High Hill Place, Star, Idaho mentioned in regard to the cost of roads that she understood by reading the Idaho Development Fee Impact Act that that doesn’t apply to voluntary annexation. Which means unless you put something in the development agreement and unless you require the proportionate fair share to be paid by the developer; once you approve all this you can't go back and say you want the money now. She stated we need to require they pay up front or you can’t recoup the money after the fact. It will be paid for by your constituents out of your general fund. Boeck stated she agreed with Mrs. Butler and that she is also represented by Mrs. Butler as one of the homeowners. She stated the citizens should not be paying for things that should be done. She agreed with Mrs. Butler and does development law and practices all over the west coast. She stated she sees developers come in with traffic studies and show you how they are getting the roads through. She has never seen anything like this. For something that will increase our population by forty percent it is stunning that it's not laid out even in a conceptual plan as to what the traffic might be and how to slow and minimize things. She pointed out they were probably aware of the young Ms. Hill who died on Highway 16 and Floating Feather. She asked what the hurry is that we don't analyze and understand what the traffic patterns are beforehand. Growth will proceed, and we should be thinking about these things because you can't do them after. She asked that they consider that. 9 Rebuttal – Mr. Butler stated he wanted to comment on two things. First in regard to the R-2 density, it is a maximum density. There is a condition in the development agreement that is very specific in regards to traffic. A traffic study has to be done for the entire 1,500 plus acres before they can plat one lot. And that traffic study has to be hammered out with Canyon Highway District No. 4, ACHD, ITD and the city of Star. This is a condition the Council put in the Development Agreement. If it shows the density is insufficient for roadways and you can't build for sufficient roadways for the density, they don’t get the density. This development is strictly conditioned on that. Lastly, Mr. Butler noted they are the finders of fact and sit as judges. You look at what the applicant submits, the legal description and what the proponents submit. In looking at who owns what property, you have a fifty or sixty page metes and bounds specific legal description done by Roy Johnson, who is a licensed professional engineering surveyor of the state of Idaho, certifying all of the 1,500 plus acres is owned by Richard Phillips and his companies, nobody else. On the other hand you have four or five sheets of paper that is done on some sort of an excel spread sheet submitted by their legal counsel. Mr. Butler stated the Council can decide what property ownership records they want to use in making their decision; the one done by a licensed surveyor and every parcel stamped or the one printed off on a spread sheet. McLain stated they have a couple of edits to the findings prior to the approval or denial. What she was hearing in the testimony and what is being asked by the petitioner for reconsideration is that they are being asked by residents to stop everything, do a very comprehensive analysis of your comp plan, one that would easily extend from one to two years before even moving forward. What is being asked for is in fact a moratorium on development and that is not something that is reasonable. Prior to the July 24th amendment of the comprehensive plan the City identified it had deficiencies in the comprehensive plan and have corrected them. That should not stop the growth. She stated she believed comprehensive planning and overall plan amendment, which she believes Mr. Butler is going to be providing over the next year to eighteen months, is a great idea. A lot of good points were brought out that this was a very fast-growing valley and everywhere they are experiencing growing pains. To stop someone from receiving entitlement because of this growth, I think is completely unreasonable and unfair to that property owner. In regard to the findings, one thing they would request to be added is pursuant to Idaho Code, a taking clause, basically a notice that applicant is entitled to a taking analysis, is required and is absent in these and they are requesting that this be included as an additional condition should you move forward with this application. The other one is on page 8 of the annexation DA approval at the bottom; it says “on July 24, 2018 the City adopted an updated Comprehensive Plan". Right after that I would add the language, “written findings were approved August 7, 2018", this is a mere clarification of procedure. She stated the Development Agreement did not have to be approved right away. She can review the draft DA and make sure the City does not miss out on any impact fees and will put any required language in the agreement, though she is only aware of the City having park impact fees. ACHD has their own impact fees and will be sure and collect from that land owner. The City could in no way prevent the other jurisdictions from collecting their impact fees. McLain stated she will make sure the development agreement will have any required language to make sure City is not missing out on any impact fees they should receive. Hershey asked for clarification as to whether the taking clause analysis is the taking clause as in the Fifth Amendment. McLain stated yes, it just says pursuant to, it is a boiler plate and she had not noticed it wasn't on there until just recently. It is very boiler plate language, she just doesn't have it in front of her. It just notifies the applicant that they are entitled to seek a regulatory taking analysis per state statute and it is usually at the very end of every decision. Hershey asked if it is even required for voluntary annexation. McLain noted this is also for rezone and DA, so she would say we need to have it in there. 10 Keyes asked about Mrs. Butler mentioning the Ray Irving property and what this was in reference to. Mr. Butler stated this was the first he had heard of it and stated maybe the applicant could clarify. Nathan Mitchell, 10305 W. Floating Feather Road, Star, Idaho stated one of the site plans that was presented has a piece of property south of Lanktree Gulch, that is approximately fifteen acres, which the Chuker Point HOA actually owns. It was showing on the colored maps and we discussed it at the January meeting. It is still showing on the colored maps but is not included in the legal description provided for our annexation; and they have clarified it with the Chuker Point HOA. It is a parcel that was sold to them by Mr. Phillips in order for them to put a sign out at the end of their road. Mayor Bell noted they need to change the map. Keyes noted Mrs. Butler mentioned the need to follow case law. He asked if there was any specific case law that they ought to be considering this evening that would support any argument on either side of this application. McLain stated they had researched and have provided two cases pertaining to the request for reconsideration; one we specifically address in the findings. She noted they are unable to specifically identify what it is they are referring to when they keep referring to case law. The City has gone back and updated the comp plan and there has not been anything quite like that. They have reviewed current case law and feel the property rights everyone is entitled to have been satisfied. In reviewing the documents they have provided, she feels the deficiencies have been satisfied. Nielsen asked McLain to comment on some of the questions between himself and Mrs. Butler, specifically regarding the transportation clause and comprehensive plan, including the advice that agencies responding that additional processes need to be taken in conjunction with the City. He asked how she would interpret that in terms of their findings of approval on this application. McLain explained that the fact a TIS has not been done as of today, the TIS has to be done and in coordination with agencies; it is required in the development agreement. Mr. Butler has already touched a little bit on the fact entitlements may be provided. The traffic study will be done by the developer, at developer expense, prior to preliminary plat. She stated she appreciated what he was asking, as sometimes the TIS study is submitted with the applications. Council is following the City comprehensive plan requirement and there is co-ordination with other jurisdictions. Chadwick asked if the difference between this and some other application is the fact we don’t have a plat to require this TIS. McLain stated it is timing. In any other jurisdiction a lot of times you have a check list of what is required and a TIS may be one of them. Some jurisdictions require prior to preliminary plat, at final plat or even out to certificate of occupancy. We require it at preliminary plat. They have to provide it and the road experts will look at that TIS and it has to be incorporated into any development. Chadwick stated he understood it is timing and was wondering if it had more to do with the type of application as this is an annexation and zoning only with no plat. He noted they usually only see a TIS with a plat. McLain stated that with any jurisdictions she has worked with this has not been an issue as to when they want to see this, and she feels it is appropriate before preliminary plat. Mayor Bell asked Nathan Mitchell, representative for the applicant, if he would like to address any of the comments and concerns presented tonight. Nathan Mitchell, 10305 W. Floating Feather Road, Star, Idaho stated he felt Mrs. Butler and McLain had explained case law better than he can and the Council has the information in front of them. He noted this has not been a rushed project; the total Hillsdale conversation started with the County before the City became a city in 1997. It was probably first brought to the City in 2011 or 2012. In 2013 it was 11 probably where everything was platted showing every ounce of ground covered with a lot; but that is not what they want to do. It has already been addressed with the surveyor and everything that Roy Johnson has provided is stamped by a licensed professional for the State of Idaho. The site plan does have extra property which has been addressed. They can definitely update the map and remove that piece of property to make people more comfortable, as they obviously have no authority to request annexation of ground they do not own. He stated they have done everything they can do to prove Mr. Phillips is the deciding interest in every entity that has title to any of these properties. Part of this request is to stop and do planning and he stated he believed this is the very beginning of the planning process. He believed the development agreement is a very good document that guides and dictates what needs to be addressed; above and beyond what the comp plan and the unified development code address. They fully intend to comply with everything in City codes and try to meet the goals and objectives of the comp plan. He stated they have done a great job through negotiations in providing a document that protects the land, property owner, the City, and the residents who surround this property. Mitchell stated Mrs. Butler stated they have been given the automatic right to do something and stated he disagrees with that statement. The development agreement has multiple clauses in it that require detailed planning steps to take place before anything on that property can change. He pointed out this is not an development application, it is an entitlement application and they are asking to join the City as the guiding agency in the planning process to decide what is going to take place on that property. Kim Sullivan asked they give them more time and get things right this time; he believes the development agreement does require them to get the answers right before they can do anything. Mitchell stated he thinks it's a disservice to the citizenry of the City to talk about an invalid comp plan; there were some technical issues that needed addressed and they have been addressed. Matt Flemming talked a lot about the downtown process, and noted it is a very limited geographic area to the downtown area of Star only, and doesn't really have an impact on where we're standing right now, let alone five miles north of us. Richard Moore commented on establishing a vision of community, and he agrees the community has grown from 5,000 to 10,000 since the comp plan was done in 2008. Mitchell acknowledged that this does affect the residents outside the City limits. Mitchell explained that per State Code half of the committee for the 2008 comp plan was comprised of residents outside the City limits; they were represented. This is a valid plan and stated they are doing a good job of following it. Mitchell stated that everyone's opinions matter as they are affected by this. In regard to VanDussen's comments regarding infrastructure, he encouraged all to read the development agreement which addresses all the public services which the City and sister agencies require. They are donating land for schools, police, fire services, sewer treatment and for water mains. Mitchell stated he has not provided a bubble plan (not sure what a bubble plan is), but did provide a site plan with different colors on it that asks for different things. He noted Lenigan stated there is no written plan, and Mitchell stated there is a very detailed road map to get to the planning for what the City needs in their development agreement; and that contract binds that ground, no matter who owns it, before anybody can do anything with it. They are asking to join the City in a planning process that your documents guide as opposed to somebody else's documents. In regards to McDowell 's comments, they will contribute $11,655,000.00 to the road system on top of building all on-site improvements that need to be built. Mitchell stated they have every intention of paying every impact fee that is applicable and are on the record stating that the Canyon County portions of this property, which is a majority of the property, which is not guided by the Ada County Highway District, that they are willing to commit to paying equal impact fees to either the City or to Canyon Highway District No. 4, depending on which one would like the check. He stated he didn't believe this was addressed adequately in the development agreement and should be added to the findings, to put on record that they are willing to commit to that. He offered to add wording to the development agreement that they will pay park impact fees, highway district impact fees, pay sewer connection fees, and any other type of fee that is collected with the building permits. He stated he 12 believed the process is in place for those to be collected, but if it would make everyone more comfortable to write it down again he would agree to it. He stated he agreed with Colleen Moore's comments regarding walkers and that he is one of those drivers who will go around walkers whenever possible. Mitchell stated they understood the Council's reasoning for considering reconsideration and he requested approval for their annexation request. The Mayor asked for comments from staff before closing the public hearing. Mr. Butler stated with regard to what Mitchell said regarding adding something to the development agreement so there's a guarantee that when or if there is an impact fee being charged by Canyon Highway District No. 4, that he agrees they will pay those, he would be willing to help draft the language. Chadwick stated be believed Mitchell was saying he would pay those fees, not if they asked for it, but equal to Ada County fees to either them or the City. Mitchell clarified that currently Canyon Highway District doesn't have ordinance authority under Idaho State statute and can't impose an impact fee, but Ada County Highway District can impose an impact fee. They are proposing to commit to paying on the Canyon County side an impact fee equal to Ada County Highway District's impact fee for those lots which would be developed on the Canyon County side. His understanding is the City may have to collect those fees and pass them onto the Canyon Highway District to improve the roads. Mr. Butler stated that if they decide to approve this they need wording stating they will provide a map replacing the concept plan that is currently in the development agreement with a concept plan that removes the Ray Irving parcels. He stated he felt it would be appropriate to have that clear. Mayor Bell closed the public hearing and moved to deliberations. The Mayor explained the decision before them is whether or not to grant the applicant acceptance of his application as we did before or deny. He asked McLain to clarify. McLain explained this is actually twofold but will come in three different motions since the comprehensive plan is a separate decision. It is putting a fresh pair of eyes on the application with the new text amendments to the comprehensive plan as well as doing an analysis of the request for reconsideration and any changes that may have come out of that based on their request. So that would be a new decision over the land use application itself and the other action would be the decision on the request for reconsideration. Staff has proposed for you to grant it in part and in essence deny it in part. They have asked for you to void the June findings, and staff would recommend that request, and replace it with whatever findings of approval you find tonight with the conditions staff has added onto the draft presented to you. Mayor Bell explained there was a development agreement that was proposed and accepted between the City and the applicant that went above and beyond what is their normal asking. They agreed to donate school sites, fire sites, sewer sites, several sites to give up land for things we asked them to do. They also agreed to everything we asked in regards to transportation and to do a complete comprehensive transportation plan in which all agencies will be involved and in which all the agencies involved will have to agree to before they can get preliminary plat approval and this is for the entire 1,560 acres. This literally starts the planning process, and we understand how important it is to plan and how important our comprehensive planning is. He stated he agreed with Mitchell that they have a comprehensive plan they can rely on. They have fixed several deficiencies and are continuing to work on updating the comprehensive plan; which will continue no matter what the decision tonight. The implementation of their new economic development plan will happen this year. They have hired Dave Szplett to help them work on the transportation corridor plan. They are in the middle of more planning right now than they have ever been. He explained there will be many meetings planned to gather input 13 for the comp plan, the economic plan and their transportation plan. This application, and any other applications, will be required to be part of that plan and to comply with everything the plans produce. The Mayor stated he wanted everyone to know they have listened and value their input and will continue to value their input as they plan. Keyes stated he realized there are a lot of people who don't think they listen very well, but he wanted them to know he has been listening. Sullivan's comment about them doing the right thing resonated with him and he felt the struggle with this Council is not in doing the right thing, but sometimes the struggle is deciding what the right thing is to do. He asked the audience to understand this Council is trying to do the right thing. He noted Mr. Moore spoke about the comprehensive plan and let them know they have put significant funds in their budget for this coming fiscal year to get this planning done, to work on updating their development ordinances. In regards to Mr. Flemming's comments regarding the Downtown Revitalization Plan, it seems the plan has been put on a shelf to collect dust. With the passage of the new economic development plan, which they have budgeted money to execute, that Downtown Revitalization Plan will come off the shelf and will be used in the planning for downtown development and he believed there is some content in it that will be put into their comprehensive plan. There were comments that ITD has no money to develop their infrastructure, and he stated that wasn't quite true as they have budgeted and planned money to improve Highway 44 and also Highway 20/26. They are talking about accelerating the widening of Highway 44 from Linder Road to Highway 16 and bringing it up as soon as 2021. They are also looking at the widening of Highway 20/26 possibly up to 2021 as well. Mr. Mitchell mentioned the impact fees for transportation for ACHD on top of all the roads they will be building. Keyes stated he felt the right thing to do is to continue planning. Keyes stated he felt they could grant this entitlement and continue with their planning. As they continue with the planning it is his desire that everyone will be involved in it. Chadwick asked if they approve or deny it, either way they have to make a motion to overturn the findings on June 5th. He noted this was a new process for them with the reconsideration and wanted to make sure they are correct in what they do. McLain explained the request for reconsideration under state statute requires that a written set of findings on the decision must be rendered and addressing all deficiencies and correcting the deficiencies within sixty days of receipt of the application, which is August 18th, which is a Saturday, so it would jump you to a Monday when it is due. If the City fails to make a decision and render its findings in a written decision, then under state statute it is considered an automatic denial of the request for reconsideration; which she doesn't believe is what this Council is intending to do. She stated the appropriate action tonight would be whether or not you make changes to the findings as the staff has proposed and with the additions or keep it as is. Tonight, they need to decide what to do on the request for reconsideration, whether or not that impacted the changes to finding adopted or new findings as proposed. Nielsen stated that most things he had written down as folks were giving their testimony had been addressed by City staff, and representation by the applicant and by the Mayor's comments. Chadwick agreed. Nielsen stated the first time they went through this and approved it last spring or early summer, they put a lot of effort into hearing the testimony the people provided and going back to the drawing board with the applicant, with the planner, and with legal counsel and they drafted this development agreement. Even with the testimony heard tonight, this development agreement addresses all of the concerns that he heard talked about tonight, except for the stop. He stated he was not a stop guy unless there is a really good reason to stop and he hadn't heard a good reason to stop tonight. He didn't feel he heard a good reason to stop because the application before them is a property owner who is voluntarily coming and saying we want to become a part of the city of Star. They 14 are not coming and saying this is what we want to do with our property, they are coming and saying they want to be a part of your city, we want you to help us plan; we heard the applicant's representative state that tonight. As part of an annexation we have to apply a zoning and so we'll apply a zoning to that as it is a requirement. That doesn't tell us exactly what is going to be built, that comes later. Nielsen read from the development agreement: "Prior to any preliminary plat approval the owner shall provide a traffic impact study, geo-technical reports, utility service and phasing plans for each concept plan, will serve letter from Star Sewer and Water District, with the traffic impact study being provided for the entire development prior to submitting the first preliminary plat. The scope of the traffic impact study shall be approved by ITD, ACHD, CHD4 and the city of Star prior to commencing work on the study." He stated from what he had heard that is 95% of the concerns tonight. He stated he is okay with the decision they made last time. They had fixed the deficiencies that were not part of the plan; he is satisfied they don't have a public airport or mass transmission utilities going through this property and the technical issues were addressed. Hershey stated he wanted to come back to the statement Sullivan made about "healing the community" and stated we do need to heal. We have a lot of things out there that are not helping. He explained where his state of mind is; this morning his daughter got engaged and this afternoon he found out a friend at work had passed away from a heart attack. He stated this is simply someone trying to come to Star. It has a lot of stipulation and a lot of requirements. Comprehensive plans are not forever, growth is inevitable. There are those who believe this is something it is not. This is simply our ability to control some of the growth and that is what we are earnestly trying to do, to control some of our growth. It was also mentioned to leave your legacy and he stated he is not here to leave a legacy. He stated he fully understands there are some who do not want this to happen, but he cannot figure out a way to make growth not happen; it is inevitable. Hershey noted this is a controlled growth, a thirty to forty- year plan. As for the downtown, he stated he would like to see it move and possibly put a byway in. He mentioned we have a river that is causing havoc. We have highways on all sides of us and have a lot of traffic. We can't stop that growth, all cities are growing and this is an effort to help control some of that growth. Impact fees will be paid, and we have asked that he match lots up against existing lots creating a buffer for all of it. He stated he felt the single most important thing is the traffic - and that traffic impact study will take years to do it. No rock will be turned until that is complied with and all the other jurisdictions are in place; things are going to change. He noted this is an extremely slow and calculated process. Hershey stated he felt by adding the language stated by staff that we have got very good parameters in place to allow this to happen in a controlled environment. He agreed with Keyes that we need everyone to show up for the planning meetings for the comprehensive plan, which is a living document and will always change. Hershey stated he believed it is a very controlled growth and is very much for it that way. He noted he didn't like the first development plan but they got it changed, got in schools, police, and fire in matching and put in all kinds of parameters conditioned on the applicant. All conditions go with the property if the applicant would choose to sell. He stated he understood it looks large in one sense, but when you think of it as a twenty or thirty year project, this will give us an area for controlled growth and that is what his intent is to do. Nielsen noted they have had some conversations and staff has had some recommendations on language for the development agreement, the addition that we include those impact fees. His question of staff is they heard the applicant's representative statement; do we want to pull that from the record or do we want to put that into a motion here tonight to be included in the development agreement. McLain stated during the approval of the rezone they could add the specific condition of including in the development agreement the applicant agrees to match funds provided to ACHD for further road construction in the development which are in the Canyon County Highway District. 15 Chadwick stated they had talked a little bit about Star Sewer and Water, wanting to make sure they are running all those lines. He asked if they can put all of that in the development agreement. It was pointed out by Mayor and Council that it was already there in the agreement. He mentioned collecting impact fees for parks, ACHD, CHD4. McLain stated she will go back and review the impact fee statute and make sure the City is able to collect everything it is entitled to, and if there is language that needs to be added she will add it. M. Butler stated that if they get into the development agreement, they need to add a condition to replace that concept plan with one that removes Mr. Irving’s property as part of the approval. Nielsen asked if this was part of the approval, not part of the development agreement, to which he was informed that was correct. McLain stated that for the comprehensive plan amendment, if they take action on it, which would be the appropriate one to take first, the only addition to be added is the taking provision to be added at the end of it. As far as the rezone, again the taking and the correction on page 8 inserting the language when the written findings were approved on August 7, 2018 and then the conditions Mr. Butler just suggested as part of the approval to replace the sight plan map and then also direction to them to make changes in the development agreement regarding the impact fees. Nielsen moved to void the Findings of Fact and Conclusions of Law adopted on June 5, 2018, Chadwick seconded the motion. All ayes: motion carried. Discussion was held on the order of the next motions. Nielsen moved to approve the Comprehensive Plan Amendment with the new Findings of Fact and Conclusions of Law as presented by staff, with the condition to add the taking clause, Chadwick seconded the motion. All ayes: motion carried. Nielsen moved to approve the application for annexation with the development agreement being modified to include a statement that the applicant agrees to match funds equal to ACHD impact fees to be collected by the city of Star and paid to Canyon Highway District No. 4, and that the applicant agrees to pay all impact fees and other pertinent fees so outlined in Star City Code as current as of today, with the taking clause added as well, apply zoning of R-2 to the property, replace the concept plan with the plan removing Mr. Irving’s parcels, and add language regarding when the written finding were approved on page 8, Chadwick seconded the motion. All ayes: motion carried. McLain stated the last item to be approved is to make a final decision on the request for reconsideration based on the relief that the request made to void the findings and to comply with a full comprehensive planning process prior to processing any more applications. The staff recommends that you grant in part and you did in fact void the June 5th findings and then deny in part in that you are going to incorporate the two Findings of Fact. Your approval tonight will be incorporated into the last little bit of relief for her. Chadwick asked if they had not already voided that in the first decision. McLain stated they had and this is stating that you are granting this request and are voiding it. Then the second one is to not stop all development entitlements and that you are replacing the findings. The findings do then specifically go through every one of her issues and are addressed in those draft findings before you. 16 Chadwick moved to grant in part the request for reconsideration by voiding the Findings of Fact and Conclusions of Law of June 5th, but deny the remainder of the request and replace it with the new Findings of Fact and Conclusions of Law based on the decision tonight, Nielsen seconded the motion. All ayes: motion carried. Adjournment: Mayor Bell adjourned the meeting at 9:20 pm. Approved: Respectfully submitted: __________________________ Charlten Bell, Mayor _____________________________ Kathleen Hutton, Deputy City Clerk 17